Halverson v. Glass

154 N.W. 444 | S.D. | 1915

WHITING, J.

This action, to recover damages in the sum of $14 for trespass by swine, was commenced in justice court. Judgment therein was in favor of defendant and plaintiff appealed to the circuit court on questions of both law and fact, and 'demanded a new trial in such court. The cause was placed upon the calendar of that court for trial, and thereafter defendant appeared specially and moved the dismissal of the action upon the ground that the circuit court had no jurisdiction of the subject-matter. This motion was based upon section 838, Code Civ. Proc., providing:

“In all actions under and by virtue of the provisions of this chapter wherein the amount of damage? claimed does not exceed twenty-five (25) dollars, the judgment of the court having original jurisdiction thereof shall .be final, provided either party to such suit shall be entitled upon' demand therefor, to a jury trial.”

If section 838, supra, was in force it applied to the cause of action set forth in plaintiff’s complaint. The motion was granted, and, on June 12, 1914, an order was made dismissing the action. Upon October 28, 1914, the circuit court, of its own motion, served upon defendant an order to show cause why said order of June 12, 1914, should not be vacated and set aside and the cause set down for hearing at the next term of court. The order to show cause recited that the order of June 12th would be set aside, if at all, “as being improvidently and erroneously en•tered for the reasons in the above recital set out.” Such recital was:

“It now appearing to this court and the judge thereof that the original order entered on the 12th day of june, 1914, probably was made and entered erroneously and improvidently for the reason that said section 838 was not on the 12th day of June, 1914, the law of this state and of Uyman county, and that there was no warrant for the making of said order.”

Upon the return of such order to show cause, the circuit court, upon November 4, 1914, entered an 'order vacating and setting aside the order of June 12th. The notice of appeal recites that it is from this order of November 4, 1914, that this appeal •is taken.

[1] Appellant’s 'brief contains no assignment of error. For this, if for no other reason, the judgment must be affirmed. This court -has repeatedly called the attention of counsel to the necessity of assignments of error.

[2,3] But appellant could not sueeed for other reasons: (1) He concedes that, during the term at which orders are made, a court — “may amend, correct, modify or supplement them for cause shown, or may, to promote justice, revise, supersede, revoke or vacate them, as may in its discretion seem necessary.”

[4] For the purposes of this appeal, but without determining ■the correctness of his statement of the law, we will assume such concession to be a correct statement of the law. There is no proper showing that the term of court held on June 12, 1914,"had ■terminated on November 4, 1914. A new term had not yet commenced. Chapter 159, Laws 1913. We know that frequently a term of court is, by adjournments regularly taken, kept open for several months. If the term of the court had beeni ended, there w,as a proper record of that fact. A mere statement that the term had ended, made by counsel in that part of his brief devoted to argument, and which, statement makes 110 reference to the proper record 'showing such fact, is not sufficient to overcome the presumption that the circuit court acted within its jurisdiction, and especially is this true when, as in this case, the question of want of jurisdiction does not seem to have been suggested to the circuit court. (2) It is clear that, in enacting chapter 244, Laws-1907, it was intended to cover the whole subject-matter covered by that chapter -of the Revised ■ Code containing section 838, supra, and such chapter of the Revised Code, though not expressly repealed by such later -enactment, was repealed by necessary implication.

The order appealed from is affirmed.